NRCP 68 Attorney-Fee Awards in Contingency Cases Must Reflect Only Post-Offer Work (Overruling Capriati’s “Incurred Post-Offer” Rule)

1. Introduction

In Clark v. Marin (Nev. July 2, 2026), the Supreme Court of Nevada reviewed a tort verdict arising from a motor-vehicle collision in which respondent Nadia Marin suffered significant injuries, including a diagnosis of chronic regional pain syndrome (CRPS). Marin sued Andrew Clark (driver) for negligence and Tracy Clark (owner) for negligent entrustment. Liability was conceded; the case tried to a jury on damages only.

The appeal presented seven categories of issues: (1) trial-time allocation and due process; (2) withdrawal of deemed admissions under NRCP 36; (3) a disputed jury instruction on liability for additional harm from medical treatment; (4) denial of a new trial premised on alleged attorney misconduct; (5) expert-fee awards exceeding the statutory cap under NRS 18.005(5); (6) attorney fees under NRCP 68 following a $2 million offer of judgment served 24 days before trial; and (7) post-judgment assignment to the judgment creditor of the judgment debtors’ claims against their insurers under NRS 21.320 while the merits appeal was pending.

The court affirmed nearly everything—except the NRCP 68 attorney-fee award. In doing so, it announced the opinion’s principal new rule: in contingency-fee cases, NRCP 68 attorney-fee awards must exclude the value of work performed before the offer; contingency fees are “incurred” as work is performed, not only upon judgment. The court expressly overruled Capriati Construction Corp. v. Yahyavi, 137 Nev. 675, 498 P.3d 226 (2021) to the extent it held that contingency fees are incurred post-offer.

2. Summary of the Opinion

  • Judgment (damages): Affirmed. Jury awarded $2,045,117.55.
  • New trial (attorney misconduct): Denial affirmed; no misconduct shown.
  • Trial management / due process: No violation in conducting a 13-day trial; appellants had a meaningful opportunity to present their case.
  • Deemed admissions (NRCP 36): District court did not abuse discretion in allowing withdrawal; directed verdict properly denied.
  • Jury Instruction No. 32: Affirmed; supported by expert evidence.
  • Expert fees (NRS 18.005(5)): Affirmed; “particularized reasoning” adequately shown.
  • Attorney fees (NRCP 68): Reversed and remanded; full contingency fee award was unreasonable because it did not isolate post-offer work. Court overruled Capriati in relevant part.
  • Assignment of insurer claims (NRS 21.320): Affirmed; claims assignable upon entry of final judgment despite pending appeal (stay remedy lies in NRCP 62(d)).

A separate opinion by PARRAGUIRRE, J. concurred in all respects except the overruling of Capriati, arguing stare decisis warranted clarification rather than overruling and warning about destabilizing close precedents.

3. Analysis

3.1. Precedents Cited

A. Trial time limits and due process

The court framed trial-time restrictions through Virgin Valley Water Dist. v. Paradise Canyon, LLC, 141 Nev., Adv. Op. 19, 567 P.3d 962 (2025), emphasizing parties are not entitled to present every witness and that due process is satisfied where there is “a meaningful opportunity to present their case.” It contrasted the present case with Virgin Valley, where one party was sharply restricted mid-trial, producing an imbalance.

The court also relied on the district court’s broad authority under Young v. Nev. Title Co., 103 Nev. 436, 744 P.2d 902 (1987) and NRCP 16(c)(2)(M) to manage trials and limit evidence.

B. Withdrawal of deemed admissions

For NRCP 36(b), the court used federal persuasive authority—consistent with Willard v. Berry-Hinckley Indus., 139 Nev. 516, 539 P.3d 250 (2023)— citing 999 v. C.I.T. Corp., 776 F.2d 866 (9th Cir. 1985) and Sonoda v. Cabrera, 255 F.3d 1035 (9th Cir. 2001) on what constitutes “prejudice” from withdrawal (e.g., reliance causing proof difficulties, unavailable witnesses).

It applied Nevada’s abuse-of-discretion framework from Auto Fair, Inc. v. Spiegelman, 92 Nev. 656, 557 P.2d 273 (1976), while reviewing the directed verdict question under Nelson v. Heer, 123 Nev. 217, 163 P.3d 420 (2007).

The court declined to resolve disputed facts about whether the admissions were deemed admitted in the first place, citing Johnston v. DeLay, 63 Nev. 1, 158 P.2d 547 (1945) for the principle that the appellate court will not supply findings in the first instance.

C. Jury instruction support

The propriety of giving Instruction No. 32 was governed by abuse-of-discretion review under Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev. 1430, 148 P.3d 710 (2006), and the entitlement to instructions on supported theories under Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983). The court also treated the “inaccurate statement of law” challenge as forfeited under Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 623 P.2d 981 (1981).

D. New trial for attorney misconduct

The court applied Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008) for abuse-of-discretion review of new-trial denials, Michaels v. Pentair Water Pool & Spa, Inc., 131 Nev. 804, 357 P.3d 387 (2015) for the threshold misconduct inquiry, and Cox v. Copperfield, 138 Nev. 235, 507 P.3d 1216 (2022) for de novo review of whether misconduct occurred as a legal question.

E. Expert fees exceeding the presumptive cap

On expert fees, the court relied on Nevins v. Martyn, 140 Nev., Adv. Op. 66, 557 P.3d 965 (2024) for the abuse-of-discretion standard and the “particularized reasoning” requirement. It drew the operative multi-factor framework from Frazier v. Drake, 131 Nev. 632, 357 P.3d 365 (Ct. App. 2015), and confirmed sufficiency of explanation consistent with Motor Coach Indus., Inc. v. Khiabani ex rel. Rigaud, 137 Nev. 416, 493 P.3d 1007 (2021).

F. NRCP 68 attorney fees and the overruling of Capriati

The attorney-fee analysis was anchored in the NRCP 68/NRS 17.117 offer-of-judgment framework and Nevada’s reasonableness factors: Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983) and Brunzell v. Golden Gate National Bank, 85 Nev. 345, 455 P.2d 31 (1969). It reiterated standards of review from Thomas v. City of North Las Vegas, 122 Nev. 82, 127 P.3d 1057 (2006).

The court’s most important precedent discussion involved the tension between O'Connell v. Wynn Las Vegas, LLC, 134 Nev. 550, 429 P.3d 664 (Ct. App. 2018) (fees limited to those earned post-offer; contingency agreements may be used without billing records) and Capriati Construction Corp. v. Yahyavi, 137 Nev. 675, 498 P.3d 226 (2021) (approving awards of the entire contingency fee as post-offer fees because the fee “vests” only upon prevailing).

To correct Capriati’s “vesting/incurrence” conflation, the court relied on the definition of “incur” from Logan v. Abe, 131 Nev. 260, 350 P.3d 1139 (2015) and the enforceability/obligation premise from NRS 18.010(1) and Prostack v. Songailo, 97 Nev. 38, 623 P.2d 978 (1981). It also referenced contingency-based recovery principles including Gordon v. Stewart, 74 Nev. 115, 324 P.2d 234 (1958) (overruled on other grounds by Argentena Consol. Min. Co. v. Jolley Urga Wirth Woodbury & Standish, 125 Nev. 527, 216 P.3d 779 (2009)).

For stare decisis, the court cited A Cab, LLC v. Murray, 137 Nev. 805, 501 P.3d 961 (2021) and Stocks v. Stocks, 64 Nev. 431, 183 P.2d 617 (1947), explaining it will depart from precedent when a decision is badly reasoned, unworkable, or perpetuates error, and where reliance interests are comparatively weak.

On NRCP 68’s policy purpose, it relied on Dillard Dep't Stores, Inc. v. Beckwith, 115 Nev. 372, 989 P.2d 882 (1999) and reiterated Beattie v. Thomas’s admonition that NRCP 68 is not intended to force unfair abandonment of legitimate claims.

It also surveyed other jurisdictions to contextualize proportionality approaches: Cooper v. Thompson, 353 P.3d 782 (Alaska 2015), Ga. Dep't of Corr. v. Couch, 759 S.E.2d 804 (Ga. 2014), Pirgu v. United Servs. Auto. Ass'n, 884 N.W.2d 257 (Mich. 2016), Hansen v. Rite Aid Corp., 290 A.3d 159 (N.J. 2023). Nevada’s methodological flexibility was grounded in Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 124 P.3d 530 (2005).

G. Assignment of insurer claims pending appeal

On appellate jurisdiction over post-judgment assignment orders, the court applied Gumm v. Mainor, 118 Nev. 912, 59 P.3d 1220 (2002).

On assignability of rights of action as property in execution, the key precedent was Gallegos v. Malco Enters. of Nev., Inc., 127 Nev. 579, 255 P.3d 1287 (2011). It treated the question as de novo statutory interpretation, citing Cardenas-Garcia v. Eighth Jud. Dist. Ct., 140 Nev., Adv. Op. 52, 554 P.3d 231 (2024). The timing/property-right framing relied on State ex rel. Howell v. Wildes, 34 Nev. 94, 116 P. 595 (1911).

3.2. Legal Reasoning

A. The new NRCP 68 rule: “incurred” means accrued through performed work, and awards must isolate post-offer value

The court accepted that an NRCP 68 fee award was warranted in principle—affirming the district court’s Beattie factor findings on good/bad faith, offer reasonableness, and gross unreasonableness of rejection based on the information available at the offer time (citing Trs. of Carpenters for S. Nev. Health & Welfare Tr. v. Better Bldg. Co., 101 Nev. 742, 710 P.2d 1379 (1985) and offer-reasonableness guidance from Certified Fire Prot. Inc. v. Precision Constr., Inc., 128 Nev. 371, 283 P.3d 250 (2012) and Nevins v. Martyn).

The reversal turned on the fourth Beattie factor (reasonableness/justification of the amount) and, more specifically, the third Brunzell subfactor: “the work actually performed by the lawyer”. The court held that NRCP 68’s text—fees “actually incurred … from the time of the offer”—requires district courts to value post-offer work only.

The court’s doctrinal pivot is its definition of “incurred.” Drawing from Logan v. Abe, it held an expense is incurred when paid or when a party becomes legally obligated to pay. Under a contingency agreement, the client becomes legally obligated for services when the agreement is made, and the attorney’s entitlement to compensation accrues as work is performed, even though collection is contingent on success. That means a contingency fee does not become “incurred” solely at judgment; it is the culmination of fees accruing across the case timeline.

Applying that understanding, the court found Capriati Construction Corp. v. Yahyavi badly reasoned and practically problematic because it:

  • Conflated “vesting” with “incurrence”, creating a doctrinal mismatch with NRCP 68’s temporal limitation.
  • Encouraged windfall-like awards by compensating pre-offer work, contrary to NRCP 68’s settlement-incentive design.
  • Risked collateral doctrinal distortions for other “incurred fees” provisions (NRCP 37, NRS 41.670, NRCP 11), potentially producing “absurd outcomes” for contingency-fee litigants mid-case.

The court therefore overruled Capriati “insofar as it held that contingency fees are incurred post-offer” and announced an operational rule: district courts may consider contingency arrangements, but the award must be proportionate to and directly reflective of work performed from the time of the offer, excluding pre-offer work.

B. Methodological guidance on remand (flexible, but post-offer bounded)

The opinion preserves Shuette v. Beazer Homes Holdings Corp. flexibility: courts may use “any method rationally designed” to calculate reasonableness. But the chosen method must still segregate pre-offer from post-offer value. The court suggested approaches reflected in other jurisdictions:

  • Lodestar-first, then adjust (e.g., Alaska/Michigan/New Jersey) to reflect contingency risk—while still counting only post-offer hours/effort.
  • Prorate contingency by allocating the contingency value proportionally to post-offer work (as described in Georgia’s Ga. Dep't of Corr. v. Couch), supported by independent proof of value.

Crucially, the court required that the post-offer valuation be “informed by but … independent from the contingency fee,” i.e., contingency can be a reference point, not a substitute for measuring post-offer work.

C. Application to the record

The offer was made four years into litigation and 24 days before trial. The district court awarded the entire 40% contingency fee ($818,047.02) as NRCP 68 post-offer fees. Even crediting “hundreds of hours” of post-offer work, the Supreme Court held the award “greatly exceeds” what NRCP 68 permits because it necessarily included pre-offer value. That was an abuse of discretion.

D. Other holdings (context, not new doctrinal shifts)

While the attorney-fee holding is the opinion’s major lawmaking move, the court’s other rulings reinforce existing standards: deferential trial management so long as the process is fair; liberal withdrawal of admissions where merits presentation is promoted and prejudice is absent; instruction entitlement where supported by evidence; and execution/assignment principles treating rights of action as property once judgment is entered, with stay as the debtor’s remedy.

3.3. Impact

A. Immediate impact on NRCP 68 practice in Nevada

  • Full-contingency NRCP 68 awards are no longer presumptively defensible simply because the fee “vests” at judgment. Courts must segregate post-offer value.
  • Fee-motion evidentiary expectations will change: contingency-fee lawyers seeking NRCP 68 fees should be prepared to provide post-offer time records, task narratives, phased litigation summaries, or other proof enabling the court to quantify post-offer value.
  • Settlement leverage becomes more calibrated: offerees remain exposed to meaningful fee-shifting, but the penalty is tied to incremental post-offer litigation costs rather than the entire historical cost of the case.

B. Broader effects on “incurred attorney fees” throughout Nevada law

By rejecting vesting-as-incurrence, the opinion reduces doctrinal friction with other Nevada provisions that award “fees incurred” during litigation (e.g., NRCP 37, NRS 41.670, NRCP 11). Contingency-fee litigants can plausibly claim such fees based on post-misconduct work because fees are incurred as work is done, even if payment is contingent.

C. Execution practice: assignment of insurer claims

The court’s assignment holding confirms that, absent a stay, judgment creditors can pursue assignment of a debtor’s insurer-related claims immediately upon entry of final judgment, despite pending appeals. Practically, this elevates the importance of seeking a stay under NRCP 62(d) to prevent execution activity that alters control of potential claims.

4. Complex Concepts Simplified

  • Offer of judgment (NRCP 68): A formal settlement offer. If rejected and the rejecting party does worse at trial, that party may have to pay specified post-offer costs, including reasonable attorney fees actually incurred after the offer.
  • Contingency fee; “vest” vs. “incur”: A contingency fee is payable only if the client wins or recovers. “Vesting” refers to when the right to collect becomes enforceable (typically at recovery), but “incurring” refers to when the obligation/expense accrues—here, as the lawyer performs work under the agreement.
  • Lodestar: A fee calculation method multiplying reasonable hours by a reasonable hourly rate, sometimes adjusted up or down for factors like risk.
  • Deemed admissions (NRCP 36): If requests for admission are not timely answered, they are automatically treated as admitted—unless the court permits withdrawal to promote merits adjudication without prejudicing the requesting party’s ability to litigate.
  • Assignment in execution (NRS 21.320): A post-judgment tool allowing a court to transfer a debtor’s non-exempt property rights—including certain legal claims—to the creditor to help satisfy the judgment.
  • Ripeness vs. stay: The court rejected the idea that a pending appeal makes the debtor’s claims “unassignable.” If the debtor wants to prevent execution activity during appeal, the mechanism is a stay (NRCP 62(d)), not an argument that the claim cannot be assigned.

5. Conclusion

Clark v. Marin is a major recalibration of Nevada’s offer-of-judgment fee-shifting regime in contingency cases. The court held that NRCP 68 attorney-fee awards must reflect only the value of post-offer work and overruled Capriati Construction Corp. v. Yahyavi to the extent it treated contingency fees as “incurred” only upon judgment. Going forward, district courts retain methodological flexibility (lodestar, prorating, or other rational methods), but must exclude pre-offer work and ground awards in the value of services performed after the offer.

Beyond fees, the opinion reaffirms Nevada’s pragmatic trial-management discretion, the NRCP 36 merits-first approach absent prejudice, and the power of judgment creditors to obtain assignment of insurer claims upon judgment entry—underscoring the strategic necessity of seeking a stay pending appeal.